TTIP

http://www.morningstaronline.co.uk/a-7d13-EU-Is-your-borough-a-no-TTIP-zone-Make-it-happen#.VeQBwOTotCE

Local opposition offers new hope, writes KEVIN SMITH

POLITICIANS in both Brussels and Westminster have taken great pains to try to brush off people’s many concerns about the toxic EU-US trade deal being pushed through. But a new front is emerging in the battle against the Transatlantic Trade and Investment Partnership (TTIP). This front is harnessing the energy of grassroots groups to push local councils to oppose the corporate power grab TTIP represents. In Britain and across Europe, TTIP-free zones are popping up.

It may be seen as a purely symbolic gesture to get your local council to declare itself a TTIP-free zone. After all, these councils don’t have a direct say in whether or not the deal would be passed. But there is political value in creating pressure in this manner — it’s a powerful expression of grassroots opposition that MPs and MEPs might otherwise not be exposed to.

But TTIP-free zones help highlight the effect TTIP would have on the powers of local councils. TTIP could also affect existing powers granted to local authorities such as planning. The decision of Lancashire County Council to deny planning permission for fracking in the local area is the sort of decision that would be harder to make under TTIP — first because such a decision could be challenged in the corporate courts of the Investor-State Dispute Settlement system, and second because of the pressure to “harmonise” energy regulations.

The provision of local public services and procurement could also be affected. Current EU rules allow for environmental and social considerations in awarding contracts. For example, local governments can decide to buy only fairtrade or organic produce. Local authorities are also allowed to ensure that procurement benefits small and medium-sized businesses in the area. For instance, a number of cities, including Manchester and Glasgow, have become sustainable food cities and are trying to use more locally sourced, sustainable food in the public sector.

This could all be threatened under TTIP because the European Commission, keen to access US local markets by getting rid of “Buy America” schemes across the Atlantic, has said it wants TTIP to open local procurement to greater competition. This means that procurement could be constrained far more by price alone — giving US multinationals more access to markets at the expense of the local economy and the environment. Official EU estimates are that TTIP will induce a 25-50 per cent liberalisation of government procurement.

So it’s not surprising that in a short space of time, 19 local councils across Britain have, to some extent, declared themselves TTIP-free zones, including Sheffield, Glasgow and Bradford city councils. Chas Booth, a Green Party councillor for Leith, Edinburgh, which is one of those 19 councils, said: “In Edinburgh, we are proud of initiatives such as the Edinburgh Guarantee, which aims to ensure employment or training for school leavers. Likewise the Edible Edinburgh initiative aims to encourage local and seasonal food. These are just two of the possible targets from corporate lawyers if TTIP goes through unchallenged.”

And it’s not just Britain that’s worried. In Austria, Germany, France and Belgium there are significant numbers of TTIP-free zones being declared by local authorities. When negotiators in Brussels leave their meetings they immediately walk out into the Brussels municipality which is itself a TTIP-free zone. There are 39 no-TTIP councils in Spain and a good covering in northern Italy. This is a Europe-wide movement of local resistance to the corporate power grab that TTIP represents.

There still a long way to go. There are over 400 local councils of different kinds in Britain, so there are a lot of opportunities for local groups concerned about TTIP to raise the issue. Fortunately Global Justice Now has worked with public-sector union Unison to produce a campaign pack consisting of briefings, posters, leaflets, badges, stickers and a sample motion for you to use asking your local council to become a TTIP-free zone. They’re free and can be ordered from bit.ly/1egBFRL.

The biggest threat of TTIP has always been to democracy — the threat that corporations could have more say about what we eat, what we wear and how we structure our societies. So it’s fitting that one of the most exciting forms of resistance happening right now is happening within local democracy, which is less impeded by the corporate lobbying that’s so prevalent in Brussels and Westminster. Get in touch with your local councillors about becoming a TTIP-free zone and let us know how you get on.

https://fullfact.org/europe/ttip_secret_courts-46491#anchor

The impressively dry topic of investor-state dispute settlement (ISDS) is at the heart of the debate over a proposed treaty between the EU and US.

ISDS allows companies or individual investors to seek compensation from an independent arbitration panel if another signed-up country breaks an agreement to protect foreign investments. Almost all existing treaties involving guarantees to foreign investors use it.

Both sides want to include it in the Transatlantic Trade and Investment Partnership (TTIP, pronounced ‘T-tip’).

This is controversial. Campaigners complain about, among other things, a lack of transparency in ISDS proceedings.

Who decides cases, and where?

Using ISDS, a foreign investor that thinks it’s been treated in a way that an investment treaty doesn’t allow can ask an arbitration panel to decide the matter, rather than having to rely on the courts of the country they’re arguing with.

The arbitrators are usually commercial lawyers and academic experts in international law. Unlike a judge in a British court, they often double up: acting as an advocate for a government or company in one case, handing down decisions in another.

In general, each side will choose one arbitrator, with a third agreed upon or chosen by the organisation hosting the case.

The vast majority of cases are administered by the International Centre for Settlement of Investment Disputes (ICSID), part of the World Bank, or in line with rules published by the United Nations Commission on International Trade Law (UNCITRAL).

Are cases heard in secret?

Like other arbitration panels but unlike most courts, ICSID doesn’t make its hearings or decisions public unless the parties agree (although it does publish its legal reasoning and a list of cases).

UNCITRAL, the other major system, was so concerned at the lack of transparency that it changed its rules recently. They now say that decisions must be published, hearings should be public, and third parties (such as NGOs) can make arguments in the case. But this only applies to new investment treaties, and countries can agree to leave this part of the rules out.

Where the new rules don’t apply, “the very existence of a dispute can be kept secret if both parties so wish”. The EU has included the new UNCITRAL rules on transparency, with some modification, in a draft treaty with Canada that’s similar to TTIP.

How many are there?

While the rules on transparency make it hard to be exact about the volume of ISDS cases, campaigners often make claims about how many are taken by investors, and how frequently they succeed.

The most comprehensive breakdown of known cases is held by a United Nations agency, which tells us that they frequently revise and update their records.

At the time of writing, the database showed 608 cases launched between 1987 (when the first was recorded) and the end of 2014. The number has increased markedly in recent years, with 2013 seeing 59 new claims recorded—the highest number ever in a single year.

The increase in ISDS cases can, at least in part, be explained by the volumes of foreign direct investment over the same period, with the growth in ISDS cases and in outward investment following a similar trend.

Where do they come from?

ISDS claims typically come from companies based in relatively rich countries; the respondents are more likely to be poorer nations. Investors from the EU and US account for three-quarters of all claims.

Although no ISDS cases between the US and an EU-15 country have been identified, there have been a small number between the US and newer EU member states.

Overall, the UN records that EU member states have had 131 known claims lodged against them (around one fifth of the worldwide total). The most frequent respondents have historically been Argentina, Venezuela, the Czech Republic and Egypt.

It’s been argued that the most targeted countries are also those which score poorly in terms of legal quality. For instance, Argentina and Venezuela are currently ranked 143rd and 144th (out of 144) in the World Economic Forum’s index of “Efficiency of legal framework in challenging regulations”.

That situation seems to be changing, though. In 2014, 40% of all new claims were brought against rich countries, and a quarter were between an EU investor and another EU country (11 out of 42).

What are the outcomes?

At the end of 2014, 405 known ISDS cases had reached a resolution. The state won in 36% of these, while most of the rest were either decided in favour of the investor (27%) or settled (26%). Settled cases will typically involve the state paying an amount it is satisfied with, but the exact terms aren’t published.

To date there have been 16 cases against EU countries in which the tribunal awarded compensation to the investor, while another 13 were settled.

Only two ISDS challenges have ever been brought against the UK. The outcome of one is unknown; the other claim, against the UK and France over the Channel Tunnel, was partially successful. The companies involved were reportedly awarded compensation of around €24 million, although we don’t currently know how much, if any, of that the British government paid.

The debate about whether it should be included in TTIP is ongoing. The European Parliament has recommended that “the inclusion of any form of private arbitration courts in TTIP must be ruled out”.

The EU Trade Commissioner has expressed support for a permanent court to replace the ISDS procedure, and wants TTIP to allow for appeals and changes to how arbitrators are selected. This will have to be negotiated with the Americans over the next few months.

Update 07/08/2015

We originally said that the UK had lost neither of the ISDS cases taken against it, on the basis of a UN database. This was incorrect; in fact, a compensation award was made against the UK and France jointly in one case. We’ve updated our article, and our graph of results, to reflect this.